From: Kevin Smith <[log in to unmask]>
Date: Fri, 10 Apr 2015 00:31:16 +0000

I think it is important to say -- and I should have said this in the
beginning -- that libraries do not need contracts that explicitly
affirm fair use, or fair dealing.  Those provisions are rights granted
by statute; they are not dependent on contractual acknowledgement by
publishers.  We have those rights until and unless we give them away,
so we need to be careful about contractual language that attempt to
define authorized uses as exclusive.  And presumably it is this sort
of definition that the UK provision about the copyright exceptions
preempting contractual waivers is designed to prevent.  But it is a
red herring to argue about explicit affirmations about fair use, or to
complain that fair use is too unclear.  It is the law -- with a
statutory definition and 170 years of jurisprudence behind it -- and
it applies in all cases where it is not surrendered by contract.  As
does fair dealing, in Britain.  It simply is not a matter of
interpreting contracts or being concerned about where the agreement
was written.  Publishers do not give us fair use; we just need to be
certain that they do not try to take it away from libraries or the
citizens who use them.

Kevin


Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communications
Duke University Libraries

Sent from my iPad

> On Apr 9, 2015, at 7:45 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Sandy Thatcher <[log in to unmask]>
> Date: Wed, 8 Apr 2015 19:37:29 -0500
>
> Since British "fair dealing" differs from "fair use" in the US,
> presumably contracts from British publishers referring to copyright
> law would have to be interpreted according to British law. The new
> revision of UK law makes it explicit that photocopying for student use
> in the classroom requires a license:
>
>> The new law does not remove the need for educational establishments to
>> hold licences for use that does not fall under the "fair dealing" exception,
>> for instance, photocopying material to distribute to students.  Schools,
>> colleges and universities still have to pay for third party teaching materials
>> which are available under licence
>
> https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/375951/Education_and_Teaching.pdf
>
> Obviously, the GSU suit signifies that at least some US universities
> do not believe they need to have licenses to copy materials for
> classroom use, at least via e-reserves such as GSU set up.
>
> So, how would a US university interpret a British contract that
> referred to copyright exceptions?  Wouldn't they have to know British
> law? And for contracts with publishers in other countries, the same?
> How helpful is that, compared with very specific contract language?
>
> Sandy Thatcher
>
>
>
>
>> From: Kevin Smith <[log in to unmask]>
>> Date: Wed, 8 Apr 2015 12:09:34 +0000
>>
>> I think Winston's comment was not fully understood.  He is talking
>> about a legal provision, such as recently adopted in the U.K., that
>> says that contract terms that attempt to override user rights granted
>> in the copyright statute would be considered invalid.  In other words,
>> it would be legally impossible (or at least difficult) for libraries
>> to sign away fair use rights, as well as other limitations and
>> exceptions.  So it would not be a matter for a publisher or their
>> lawyers to decide about; it would be a provision of the statutory law.
>> As Ivy says, many publishers already include an acknowledgement of
>> fair use in their database contracts, although I think we are seeing
>> the beginnings of a retreat from that position in the wake of the GSU
>> debacle.
>>
>> As Winston said, a call for this kind of provision is included in the
>> treaty on limitations and exceptions for libraries that is before the
>> WIPO for consideration.  And it has been implemented in Britain.  The
>> goal, arguably, is to preserve the balance in copyright that is
>> enacted as a matter of public policy in the law.
>>
>> Kevin
>>
>> Kevin L. Smith
>> Director, Copyright & Scholarly Communication
>> Duke University Libraries